An Audio Visual Co-ordinator at a Victorian school has been successful in obtaining a court order preventing his school from dismissing him. The order was granted in order to 'preserve the subject matter of the litigation', being the employment of the staff member, whom we shall call Mr Draper. Given the urgent nature of the hearing, the Court used the presented facts only in a preliminary way and the case is yet to be finally determined.
These events revolve around an incident in which Mr Draper was allegedly summoned to a meeting with the School Principal. After this meeting, he was apparently suspended on full pay, escorted off the premises and told he would be subject to a disciplinary process.
Five days later, Mr Draper, in the company of a Union Official, attended a meeting with the Principal who gave Mr Draper a bundle of emails, apparently all from Mr Draper. The emails are alleged to:
The emails were alleged to have been sent to various parties including current and past employees and third parties. These alleged actions formed the basis of a view by the School that Mr Draper engaged in serious misconduct, in breach of his employment contract.
Mr Draper was then apparently given two days to consider and respond to the allegations.
In the court proceedings, Mr Draper claimed that he was bullied by the Principal and that, in his role as an officer of the Staff Association, he has been advocating on behalf of a small group of teaching staff in relation to claims of bullying and harassment by the Principal. It appeared to the Court that the emails may relate to this claim.
On the day after Mr Draper was summoned to the meeting with the Principal, the school wrote to Mr Draper saying that he would be given until 2pm the next day to provide a response to the allegations. A request of an extension of time for seven days was refused, leading to the present litigation.
Mr Draper's lawyers initiated the urgent legal action to prevent 'adverse action' being taken against him.
In this case, the potential adverse action was listed as:
In summary, the alleged adverse action was the school's reaction to Mr Draper's email campaign in relation to complaints about the bullying and victimisation occurring in the school. Under the Fair Work Act 2009 (Cth) an employer's instigation of such procedures may represent 'adverse action' which can be established by a court if an employee claims that such action was a result of them exercising their workplace rights - making the employer's adverse treatment of them illegal. The right to make complaints about an employer is a common example of an employee legally exercising a workplace right.
The Court considered the law in relation to granting an injunction. The finer mechanics of granting an injunction have been discussed in a previous article.
Essentially, the task for the Court was to assess whether:
In the end, an injunction was not granted, but a different type of Court order (with similar effect) was. Namely, the School was 'restrained' from dismissing Mr Draper or subjecting him to a disciplinary process until a further hearing. This litigation is subject to a further determination by the Court.
This case is notable. An application for such a court order is rare because of the costs and urgency of the order. These particular circumstances do not always arise. Ultimately, this case does highlight the issues associated with managing staff under the current workplace relations regime.
In particular, it is a reminder that workers in the education section are over-represented in terms of workplace bullying and harassment claims. We previously wrote that 'Secondary school teachers have the sixth highest frequency of harassment and/or bullying claims by occupation'.
The case is also a reminder that adverse action protections exist for employees under legislation. Whether intended to or not, actions taken in relation to an employee can constitute adverse action, and it is important to get the process right.
Although the issue has not yet been reached in this case, unfair dismissal provisions also exist in respect of almost all employment contracts in non-government schools. An example of this is contained in our previous article, Teacher dismissed after ‘securing’ students to chair with masking tape.